- Hard Cases and the Politics of Righteousness
And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye? . . . Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye.—Matthew 7:3-5
The law of bioethics has been the law of cases. Interpreting the common law and the Constitution, judges have written the law of informed consent, abortion, and assisted suicide. Reacting to causes célèbres, legislatures have written the law of advance directives and end of life decisions. The long, sad death of Terri Schiavo eclipsed even the long, sad deaths of Karen Ann Quinlan and Nancy Beth Cruzan in the duration and strength of the attention and passions it evoked. What are Schiavo's lessons?
Hard cases, lawyers say, make bad law. Why? First, hard cases are atypical cases. They present abnormal situations that normal rules do not anticipate and cannot handle. Schiavo is egregiously atypical. Persistent vegetative states are unusual. Few families fight so implacably and repellently. Courts—and even less legislatures, governors, and presidents—rarely encounter cases about withdrawing treatments. Decisions usually take days, not decades.
Second, hard cases make bad law because hard cases force tragic choices—choices where walking toward one blessing means walking away from another. The interests of the Schiavos and the Schindlers were irreconcilable. Ms. Schiavo's interests in living and dying clashed.
The menace of hard cases is that they invite response. But no rule can resolve tragic conflicts well. Even could such a rule be imagined, the law that can manage the hard case mishandles ordinary ones. Thus the best response to hard cases is usually no response. No system of rules ever produces uniformly good results; the goal of legislation is therefore to devise the system that yields the fewest bad results. The course of wisdom is to learn when bad results must be tolerated.
But who thinks Schiavo a hard case? It has primarily provoked righteous vindication: Had you but listened to me, all would be well. The conventional bioethical and medical wisdom is that the internecine strife that ignited Schiavo would have been extinguished had Ms. Schiavo done her duty and prepared an advance directive. This is a triumph of faith over reason: First, as Rebecca Dresser has noted, a court long ago granted Mr. Schiavo the authority to act for his wife. Second, early on a court found "clear and convincing evidence" that Ms. Schiavo would have wanted to forego food and water in her circumstances. Both rulings did what advance directives would presumably have done, but neither ended her travail.
But suppose Ms. Schiavo had—despite her youth—written a living will. Suppose—heroically—that it accurately and lucidly described a careful decision to refuse food and water in a persistent vegetative state. The Schindlers would still have presented medical evidence that Ms. Schiavo was not in that condition. For that matter, bitter and obdurate litigants don't need a good case to protract litigation endlessly.
Indeed, as Ms. Schiavo's guardian ad litem notes in this issue, the Schindlers "stated that even if Theresa had executed a formal, written living will, they would have fought to have it voided because they did not believe it was consistent with their and her beliefs." And they would have had a point. Living wills call for greater powers to predict circumstances and preferences than most of us can muster. Ms. Schiavo would not only have had to imagine the unimaginable about her physical circumstances, she would also have had to anticipate the ways her social circumstances would affect her medical choices. For instance, had Ms. Schiavo anticipated her parents' inconsolable distress at her death, would she have been willing to perdure?
Far from demonstrating the merit of living wills, Schiavo demonstrates their danger. We are insistently admonished that our wishes will be followed if we make living wills. How? Often, just by signing a form from the internet. But many of us cannot actually read those forms. Few of...